The Champion

March 2014 , Page 13

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Skilled Advocates Fighting for Children

By Maureen Pacheco

These are historic times in the development of law pertaining to juveniles. The juvenile defense community is abuzz with efforts to analyze and implement the opportunities presented as a result of U.S. Supreme Court decisions that abolished the death penalty for youth, limited the use of life without parole (LWOP), required courts to take into account the characteristics of youth in sentencing, and recognized that youth is a factor the police must consider in determining whether a youth is in custody and entitled to Miranda. These decisions change the way youth are both tried and sentenced.

This is the second “juvenile justice” edition of The Champion magazine. Several years ago, the magazine published my short piece entitled “A Call to Arms,” recommending the recognition of juvenile defense as a unique specialty and urging NACDL to collaborate with juvenile defense organizations in training defenders who represent youth. In that article, I argued that for too long practitioners in adult court and individuals representing youth have been separated — to the detriment of both groups. Too often, the informality of juvenile court leads to a mistaken understanding of the role of counsel, a diminished regard of youths’ due process rights, and in some cases, the acceptance of subpar lawyering or even wholesale waiver of attorneys — all to the detriment of the clients.

Since the 2011 publication of the first juvenile justice issue of The Champion, NACDL forged partnerships with leading juvenile defense organizations including the National Juvenile Defender Center, the Juvenile Law Center, and the Campaign for Fair Sentencing of Youth (CFSY). These alliances resulted in the synergistic development of excellent new training materials, several specialized juvenile sentencing and mitigation webinars, presentations at the annual NJDC Leadership Summit by NACDL lawyers, participation in amicus briefs, and juvenile justice tracks at each annual NACDL State Criminal Justice Network conference.

The authors of the articles herein are involved — on the granular and macro levels — in “pushing the limits” of juvenile law to ensure that youth are accorded due process, and in pushing the courts and legislatures to recognize that young people are capable of change and society should never give up on them. John Hardenbergh of CFSY writes about the need for lawyers representing youth facing LWOP to take a page from the book of the capital defense community by developing a mitigation team. Steve Harper, an instrumental voice in Roper v. Simmons, offers best practice ideas in preparing for the resentencing of juveniles who were convicted of homicide post-Miller. As this issue goes to press, a petition for a writ of certiorari on the issue of Miller’s retroactivity is before the Supreme Court in the each of the following cases: Cunningham v. Pennsylvania (No. 13-1038) and Tate v.Louisiana (No. 13-8915).

The implications of Graham and Miller and especially J.D.B. impact far more than just sentencing of youth, as seen in the articles written by Shobha Mahadev and Joshua Tepfer. Professor Mahadev explores “the new juvenile jurisprudence,” suggesting creative applications of current reforms, especially with regard to waiver or transfer hearings. Professor Tepfer contributes an excellent article on defending juvenile confessions — an area defense advocates must understand given the powerful impact of confessions and the unique vulnerability of youth to making false confessions. Finally, Professor Randee Waldman provides very useful advice for interviewing the child client.

Not only are these historic times, but they are also hopeful times. Change is happening already. Right now, in addition to developing more Web-based training, NACDL is at the table with other organizations drafting Guidelines for Representing Youth Facing LWOP. In California, NACDL co-authored an amicus brief in Caballero, a case that attracted national attention for its holding that a long term of years sentence is the functional equivalent of LWOP. That case propelled the passage of two bills: SB 9, which gives youth serving LWOP a chance to petition the court for resentencing, followed by SB 260, which gives every youth serving a long term or life sentence the opportunity for parole after 15, 20 or 25 years. Across the country, youth advocates are pairing with victims’ families, faith organizations, prison reform movements, and heretofore conservative lawmakers who recognize the failure of the current system of locking kids away forever. Juvenile defenders are receiving great training on topics such as fingerprints, toolmark and ballistic evidence, DNA, and even challenging lab certification and procedures.

Equal justice before the law, as John Mays and Richard Jaffe note in this issue’s Scottsboro Boys article, has to be more than a dream. Instead, advocates must make it a reality. Kudos is due to all defenders who have answered the call to arms.

About the Author

Maureen Pacheco is a Deputy Alternate Public Defender at the Los Angeles Alternate Public Defender’s Office. She serves as Chair of the NACDL Juvenile Justice Committee. She previously worked as a public defender and as a Clinical Professor and Assistant Director of the Center for Juvenile Law and Policy, where she co-founded the Juvenile Innocence and Fair Sentencing Clinic.